ICBC and Personal Injury Claims (12:XII)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 18, 2021.|
NOTE: The following portion of this chapter was written prior to April 30, 2021. Therefore, though it is written in the present tense, please be advised that it applies only to claims for accidents that occurred on or before April 30, 2021.
A. Making a Claim with ICBC
The IVR provides for a number of benefits that are administered by ICBC, as the motorist's insurer, in instances where the motorist damages their automobile and/or sustains injuries after an accident. These regulations can be thought of as the motorist’s “insurance policy”. All of the benefits to which a motorist is entitled are explained in the IA Regulations. ICBC adjusters in claim centres around the province administer these benefits. The following outlines the general process to be expected.
A claimant must also keep in mind that drivers have certain responsibilities at the scene of an accident. For a full list of these responsibilities, please see Chapter 13: Motor Vehicle Law of the LSLAP Manual.
When calling Dial-a-Claim, the claimant will be put in touch with a representative who will take down pertinent details of the accident, including the time, date, place, license identification of the vehicles involved, etc The representative will ask the claimant to give a brief narrative of how the accident occurred. This narrative will be taken down and entered into the computer files at ICBC The claimant will then be given a claim number that will follow the claim and the claimant through the entire process. The claim number enables ICBC to find the claimant’s file through any office and to quickly identify the adjuster who is dealing with the claim.
2. Meeting with the Adjuster
The Dial-a-Claim representative will schedule an appointment for the claimant at a local claim centre. When the claimant goes to the appointment, they will talk to an adjuster about the accident. The adjuster will ask the claimant to make a statement about how the accident occurred and about the injuries that the claimant sustained.
The adjuster will also ask the claimant to sign “No-Fault Benefit Claim Forms”. These forms are not “releases” and by signing them, the claimant is not waiving any of their rights to benefits or to damages for injuries or loss emanating from the accident. The forms simply allow for the release of the claimant’s MSP number, the claimant’s SIN number, information from the claimant’s doctor, and information from the claimant’s employer. Nonetheless, it would be prudent for unsophisticated or illiterate claimants to have someone, other than the adjuster, go over the forms with them before signing.
3. The Adjuster’s Perspective
While the adjuster is an agent of the claimant’s own insurance company, for purposes of administering the “no-fault benefits” the adjuster is also an agent of the tortfeasor’s insurance company and, in that capacity, has an interest in minimizing the claimant’s injuries and damages.
The adjuster will typically encourage the claimant to minimize the extent of the injuries or damages. The claimant should be aware of this and should guard against agreeing that everything is satisfactory when it is not. Claimants should be cautious not to express optimism about their injuries and should try to neither understate nor overstate their injuries.
Where fault is an issue, claimants may find the adjuster manipulating their narrative to place them in a negative light. This is often done in very subtle ways and claimants should be aware of it so that they can guard against it. Typically, an adjuster will draw a map or diagram of the accident scene and state that it is “not to scale”. The Corporation may later claim that the diagram is an accurate depiction of the accident and tantamount to a confession of fault.
The claimant should avoid agreeing with interpretations of the accident that are made by the adjuster and should endeavour to have the adjuster transcribe the claimant’s exact words. Typically, the adjuster will write out the claimant’s statement in longhand and then ask the claimant to review it. The claimant may feel reluctant to make changes because the adjuster has taken the time to write out the statement. The claimant should not hesitate to make changes and initial them, or to ask the adjuster to start all over again.
The claimant should be extremely careful in making statements to the adjuster. The claimant must understand that these statements will later be scrutinized. In cases involving serious injury and cases where liability is disputed, the claimant should have a lawyer with them when they make statements to the adjuster.
4. The “Independent” Medical Assessment
Under the IVR, ICBC may appoint a doctor to make an “independent” medical assessment of the claimant’s condition even after your own doctor has assessed you’. While some of these doctors are objective, others may have a strong defence bias. Their task is to see if they can locate weaknesses in the claimant’s case. The claimant should take care neither to exaggerate nor to minimize the injuries.
5. ICBC Private Investigators
The claimant should be aware that private investigators hired by ICBC do exist. They check up on claimants and the evidence that they gather can be used against claimants. For example, if the claimant says that they cannot mow the lawn or lift a bag of flour, and then goes outside and does just that, they run the risk of being photographed and/or videotaped by a person employed by ICBC.
6. “Minimal Damage” and ICBC Policy
The claimant should also be aware that ICBC has a well-publicized policy of declining to honour claims for injuries or losses where there is “minimal damage” to the automobiles and/or persons involved in the collision. Where the damages fall below $1,000, a claimant may find themself confronted with an adjuster who states flatly that ICBC has a policy of refusing to pay claims in certain cases where science has established that injuries and damages cannot occur. An adjuster may also tell a claimant that they are without discretion in settling claims, and that they are required to employ classifications and a system of scaling, with an unsuccessful or unsatisfactory result for the claimant. In all these situations, the claimant should know that these decisions do not represent the law, but are merely ICBC policy, and can be and often are challenged successfully in court, where judges may give larger awards. Recently, it appears that ICBC may be revoking this policy.
B. Identifying Parties to the Dispute
The plaintiff(s) in a given case may be any or all of the following:
- the injured party (which could be the driver, occupant, or bystander) or the estate of the deceased; the relatives of the injured party; the registered owner of the vehicle in the accident; and/or the guardian of a party lacking the requisite mental capacity to commence an action.
In general, anyone whose negligence may have caused or contributed to the motor vehicle accident should be joined as a defendant. This might include:
- the drivers; passengers; the estate of deceased defendants; registered owners of vehicles; ICBC or other insurers; the ministry of BC transportation; municipalities; the parties responsible for the manufacture or maintenance of the vehicle; and/or employers.
Appropriate third parties to the dispute will often include insurance companies (including ICBC) who, while not themselves tortfeasors, may be under an obligation to indemnify the defendant.
- NOTE: It is very important to properly determine who the parties are. Failure to do so may adversely affect the client’s claim, and/or may result in an empty judgement. See Chapter 20: Small Claims for more information (the information may hold true in Supreme Court as well).
- NOTE: When the accident occurred “in the course of employment”, the Workers Compensation Act [WCA], RSBC 1996, c492, may apply. Where the WCA is engaged, the Act assumes exclusive jurisdiction over the case, and an action in tort is barred. It is therefore extremely important to fully explore the employment relationship(s) of both plaintiffs and defendants before proceeding. See Chapter 7: Workers’ Compensation for more information.
C. The Fault Requirement
The present system of accident compensation is fault-based. The claimant sues in tort, which can be divided into two areas: intentional torts and negligence. Injuries that are caused with intent to contact (in the case of battery) are intentional torts. Injuries that are caused by a lack of reasonable care by one party are negligence claims. Negligence encompasses all departures from accepted reasonable standards.
A prerequisite to any tort action is that the damages suffered by the claimant were not caused by the claimant’s own fault. If the claimant is partly at fault for the accident, damages will be reduced in accordance with the claimant’s degree of fault. For example, if the claimant is 50 percent to blame for the accident, their damages will be reduced by a corresponding amount of 50 percent.
Cases where fault is an issue frequently go to trial. Claimants should be advised that often the adjuster will suggest a claimant is fully at fault for the accident, when in fact they may only be partially at fault. The claimant should recognize that the adjuster is trying to dissuade the claimant from litigating a claim. The claimant may well end up establishing 50 percent fault on the part of the other driver and obtaining a 50 percent settlement.
D. Private Settlements
Private settlements should be discouraged. Potential plaintiffs should always consult a lawyer prior to settling a claim, whether privately or with ICBC. Similarly, potential defendants in such matters should seek the advice of a lawyer and contact ICBC prior to paying out any sums, so as not to prejudice their rights and their plan of insurance with ICBC.
E. Inequality of Bargaining Power
The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties.
In Towers v Affleck, 1973 CanLII 1692 (BC SC) at page 719, Anderson J. stated that the question to be determined is whether “the plaintiff has proved by a preponderance of evidence that the parties were on such an unequal footing that it would be unfair and inequitable to hold them to the terms of the agreement which they signed. While the court will not likely set aside a settlement agreement, the court will set aside contracts and bargains of an improvident character made by poor and ignorant persons acting without independent advice unless the other party discharges the onus on them to show that the transaction is fair and reasonable.” See also Pridmore v Calvert et al, 1975 CanLII 1091 (BCSC).
On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked:
- Was there inequality of bargaining power?
- If so, would it be unfair or inequitable to enforce the release of claim against the weaker party?
Where a plaintiff signs a Release of Claim, the defendant will not be able to dismiss a claim the plaintiff subsequently makes using Rule 9-7 of the BC Supreme Court Civil Rules, if the evidence leads the court to conclude that the plaintiff was misled, even if unintentionally, into believing the document signed was releasing claims in areas that the plaintiff believed to be irrelevant.
This reasoning relies on the plea of non est factum (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not their deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly their deed.
Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid. Unconscionability can be established when the bargain was an unfair one and when there is an inequality of power in the bargaining positions. See Morrison v. Coast Finance Ltd., 1965 CanLII 493 (BCCA). Misrepresentations are untrue or misleading statements made during a negotiation. See Clancy v Linquist 1991 CanLII 795 (BCSC), per Scarth J.
In Mix v Cummings 1990 CanLII 1 (BCSC) [Mix], per Perry J., a general release discharging and releasing defendants from all claims, damages, and causes of action resulting, or that will result, from injuries received in an automobile accident was upheld on the following basis:
- the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident;
- the release was not the product of an unconscionable or unfair bargain; and
- the plea of non est factum and want of consensus ad idem were unfounded in the circumstances.
The implication of the Mix judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than they anticipated when signing a release will generally not invalidate the release.
F. Plaintiff's Duty to Mitigate
The plaintiff has a duty to mitigate his/her injuries after an accident. Generally, this means following your doctor’s instructions so that recovery from any injuries is as quick as possible. Failing to follow your doctor’s instructions can aggravate the injury and prolong recovery, thus increasing expenses. If this is the case, ICBC will argue that your failure to mitigate and speed up the recovery should decrease the amount of money to which you are entitled. This occurred in Rasmussen v Blower, 2014 BCSC 1697, , where the plaintiff was counselled to do physiotherapy and massage, but only attended one appointment of each. The trial judge stated that the plaintiff should have shown more perseverance and given time to allow the medical treatments to work. Due to the plaintiff’s failure to mitigate, the trial judge reduced the plaintiff’s award by 20%.
If you find that you are unable to afford certain treatments that are mandated, you should apply for coverage through Part 7 (no-fault) benefits (see Part X.C). A judge will not take a failure to apply for these benefits as an excuse for not continuing with treatment (Rasmussen v Blower).
G. Which Court has Jurisdiction?
1. Provincial Court, Small Claims Division
The Small Claims limit is $35,000 (effective June 1, 2017). Accordingly, claims for minor injuries may come within the jurisdiction of the Provincial Court. The procedure for bringing a case to trial in Small Claims Court is fully set out in this Manual in Chapter 20: Small Claims.
A claim commenced in Small Claims court can be transferred to Supreme Court on application by one of the parties or by a judge on their own initiative. Such an application should be made as early as possible for a greater chance of success. A judge at the settlement/trial conference, at trial, or after application by a party at any time, must transfer a claim to Supreme Court if they are satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000. However, there may be exceptions. A claim will remain in the Small Claims Division if the claimant expressly chooses to abandon the amount over $35,000. For personal injury claims, a judge must consider medical or other reports filed or brought to the settlement/ trial conference by the parties before transferring the claim to the Supreme Court.
2. Civil Resolution Tribunal
Starting April 1, 2019, the Civil Resolution Tribunal (CRT) began making decisions on the following matters, when there is disagreement between a claimant and ICBC:
- classification of an injury as a minor injury;
- entitlement to receive accident benefits claimed;
- decisions regarding who is at-fault in the crash and settlement amounts for all motor vehicle injury claims below a threshold that will not exceed $50,000. (i.e. liability and damage disputes)
Note: As of March 2021, the BC Supreme Court has deemed the CRT’s authority to adjudicate on minor injury determinations and liability and damage disputes as being unconstitutional (Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348 (CanLII)). This case is currently being appealed. At present, this means that parties can choose to bring minor injury determination disputes, as well as liability/damage disputes in relation to cases with damages of up to $50,000, to either the CRT or through the court system. Disputes regarding entitlement to receive accident benefits are unaffected by this decision and will proceed solely through the CRT. It is unclear when this appeal will be decided, or how the outcome will affect the forum for these disputes going forward.
For claims started before April 1, 2019, the upper limit of $5,000 applies and the claim must be made under the CRT’s small claims jurisdiction – this is not the same as the Small Claims Court.
The Civil Resolution Tribunal is designed to be accessible, economical, and without the need for legal representation. Claimants will still be able to hire a lawyer for most motor vehicle claims made on or after April 1, 2019, should they choose to do so. In some circumstances, the claimant may have to ask the CRT for permission to hire a lawyer. Decisions made by the Civil Resolution Tribunal can be reviewed by the Supreme Court of British Columbia.
For more details, Chapter 20 of the LSLAP Manual on the CRT and its procedures: "https://www.lslap.bc.ca/manual.html"
You can also find useful information on the CRT’s website: "https://civilresolutionbc.ca/how-the-crt-works/getting-started/motor-vehicle-accidents-and-injuries/"
3. Supreme Court of British Columbia
The Supreme Court of British Columbia is governed by the Supreme Court Civil Rules.
Actions involving the ICBC for damages over $50,000 (effective July 2, 2019) come within the jurisdiction of the Supreme Court of British Columbia (Accident Claims Regulations, s 7). The following represents a brief overview of the procedure for bringing a case to trial at this level.
A claim commenced in Supreme Court can be transferred to the Small Claims on application by one of the parties or by a judge on their own initiative. The judge must be satisfied that the monetary outcome of the claim will not exceed $50,000. Such an application should be made as early as possible for a greater chance of success, and where appropriate, may be accompanied by an express statement by the plaintiff abandoning any claim to damages in excess of $50,000.
a) Regular Trial
(1) The Notice of Civil Claim
A claim in the Supreme Court of British Columbia is initiated by filing a Notice of Civil Claim. The Notice of Civil Claim is served upon ICBC and the defendant(s). The IVR deals with situations where there are unknown drivers, hit and run accidents, etc. Where the defendant is an uninsured motorist, ICBC will receive the pleadings and file a defence.
(2) The Response to Civil Claim
After the claim has been served, ICBC will appoint defence counsel on behalf of the insured, or on behalf of itself if there is an uninsured motorist, and file a Response to Civil Claim.
(3) Reserving a Trial Date
After the Response to Civil Claim is filed, the parties will reserve a trial date. The trial date usually falls approximately two to two-and-a-half years ahead. The reason for this delay is that the court registry is overbooked. The delay is not usually a problem since it takes some time to organize the trial and it is often not until some time after the accident that the full extent of the claimant’s injuries can be determined. If additional time is required, when the trial date arrives, the trial can be adjourned by consent of the parties.
(4) The Examination for Discovery
Once the trial date is reserved, an Examination for Discovery may be held. Discovery of the plaintiff is initiated at the option of defence counsel and will typically occur six months to one year after the lawsuit is initiated. The Discovery will usually take one day but can last longer in certain cases. Prior to the Discovery, defence counsel will scrutinize the claimant’s statements to the adjuster. At the Discovery, the defence counsel will cross-examine the claimant about the manner in which the accident occurred and the extent of the claimant’s injuries.
Most cases are not settled until after the Discovery, since it is at this stage that defence counsel is able to assess the credibility and seriousness of the claim and make a determination respecting the sort of damages to which the claimant may be entitled.
b) Fast Track Litigation - Rule 15-1
This rule was introduced to provide an efficient and less expensive means of dealing with cases where the trial will last 3 days or less.
Fast track litigation may apply to an action if:
1. The only claims in the action are for money, real property, builder's lien, and/or personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
a) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
b) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss; and
c) the fair market value, at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.
2. The trial of the action can be completed within 3 days
3. The parties to the action consent, or
4. The court, on its own motion or on the application of any party, so orders.
NOTE: The court is not prevented from awarding damages in excess of $100,000.
If this rule applies to an action,
- any party may file a notice of fast track action in Form 61;
- the filing party must serve all other parties on record with a copy; and
- the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed or if the court so orders.
- This rule ceases to apply if the court, on its own motion or on application of any party, so orders.
- Parties to a fast track action can serve on another party a notice of application or an affidavit in support of an application ONLY after a case planning conference or a trial management conference has been conducted in relation to the action. This rule does not apply if:
a. The court orders the fast track action to cease;
b. If an application is made by a party, judge, or master to relieve a party from this requirement if
i. It is impracticable or unfair to require the party to comply; or ii. The fast track litigation application is urgent;
c. If the action is scandalous, frivolous, or vexatious (as per Rule 9-5);
d. If the action will proceed by summary judgment or summary trial (Rule 9-6 and 9-7);
e. If an application is made to add, remove, or substitute a party; or
f. The parties consent.
- Fast track action must be heard by the court without a jury.
- Examinations for discovery of a party of record by all parties of record who are adverse in interest must not, in total, exceed 2 hours or any greater period to which the person to be examined consents, unless otherwise ordered by a court
- All examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date, unless the court orders otherwise or the parties to the examination consent.
- If a party to a fast track action applies for a trial date within 4 moths after the date on which this rules becomes applicable to that action, the registrar must set a date for the trial that is not later than 4 months after the application for a trial date.
- Rule 11-8 is modified in a fast track action:
- Rule 11-8 (3): Except as provided under this rule, a party to a vehicle action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death:
- (a) expert opinion evidence of up to 3 experts;
- (b) one report from each expert referred to in paragraph (a).
Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a reference to “one expert”.
- Rule 11-8 (8): In a vehicle action, only the following amounts may be allowed or awarded to a party as disbursements for expert opinion evidence on the issue of damages arising from personal injury or death:
- (a)the amount incurred by the party for up to 3 expert reports, whether or not the reports were tendered at trial, provided that each report was
- (i)served in accordance with these Supreme Court Civil Rules, and
- (ii)prepared by a different expert;
- (b)the amount incurred by the party for
- (i)a report allowed under subrule (4) or (5),
- (ii)a report referred to in subrule (6) or (7), or
- (iii)a report prepared by an expert appointed by the court under Rule 11-5 (1);
- (c)the amount incurred by the party for an expert to give testimony at trial in relation to a report, referred to in paragraph (a) or (b), that was prepared by the expert.
Rule 11-8 (8) (a) is to be read as follows: the amount incurred by the party for one expert report, whether or not the report was tendered at trial, provided that the report was served in accordance with these Supreme Civil Court Rules.
Claimants often have unrealistic expectations about the amount of damages they are likely to receive. Claimants should be cautious about listening to stories of awards told by relatives and friends as these stories may be exaggerated and/or may be missing crucial pieces of information.
1. How Damages are Assessed
The court will determine what damages a claimant is entitled to on the basis of precedent. It is, therefore, possible to project what the court will award by looking for similar cases. The judgments will outline the nature of the injuries sustained by the claimant and the court’s assessment of damages.
2. Heads of Damage
To understand an award, it is necessary to consider all the heads of damage. For example, a claimant who is a brain surgeon at the height of their career and who has a finger amputated might have a loss of prospective earnings claim in the millions and a relatively small claim for non-pecuniary losses. In contrast, a claimant who is retired and has a leg amputated may have a relatively low loss of prospective earnings claim but a relatively high claim for non-pecuniary damages.
The major heads of damage are as follows:
a) Non-pecuniary Damages
Non-pecuniary damages are awarded to compensate the claimant for pain and suffering, loss of enjoyment of life, loss of expectation of life, etc. In 1978, the Supreme Court of Canada placed a cap of $100,000 on awards for non-pecuniary damages in Andrews v Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC). This means that the limit for this head of damages after adjusting for inflation, is now about $380,000.
Effective April 1, 2019, there will be a limit of $5,500 on payouts for pain and suffering for minor injuries. ICBC is working to create a legal definition of what is a minor injury. It will include sprains, strains, general aches and pains, cuts and bruises, and mental anxiety and stress from a crash.
b) Loss of Prospective Earnings
Loss of prospective earnings is the capitalized value of the claimant’s loss of income from the time of the accident to the claimant’s projected date of retirement. The capitalization rate will be calculated by using present rates of return on long-term investments, and an allowance will be made for the effects of future inflation. In determining the value of prospective earnings, the claimant’s earning capacity over their working life, prior to the accident, will be evaluated. In a claim for the capitalized value of lost prospective earnings, the defendant will seek to reduce that amount by introducing evidence of future contingencies.
c) Cost of Future Care
Cost of future care is the cost of the claimant’s future care over their expected life span. As with loss of prospective earnings, cost of future care is capitalized and reduced for contingencies.
d) Special Damages
Special damages compensate the claimant for expenses like drugs, crutches, orthopaedic shoes, and artificial limbs. Claimants should keep every document, receipt and bill that relates to their accident. The claimant must have the originals to be reimbursed.
3. Lump Sum Awards and Structured Settlements
Damages can be paid in a lump sum or through a structured settlement. A structured settlement is an arrangement where the damages to which a claimant is entitled are left under the control of the insurer. The insurer enters an annuity contract with the claimant and agrees to pay that claimant a certain income for a set period of time. Structured settlements are often recommended in infant cases and cases where the claimant has a mental disability or infirmity. In rare cases, a court imposes a structured settlement.
Structured settlements are worth considering if the amount of the principal settlement exceeds $50,000 to $100,000. These arrangements offer advantages for the claimant and the insurer. One advantage for the claimant is that the interest gained on that settlement is not taxable. The claimant, therefore, gets much more money than if they took the lump sum and invested it. Another advantage is that the claimant does not suddenly come into a large sum of money and run the risk of spending it foolishly. The advantage to the insurer is that the Corporation doesn’t have to pay out all of the money at once and is entitled to derive income from it.
Structured settlements can be set up through a number of licensed dealers in British Columbia. Various options are available. For example, the claimant could receive a lump sum every five years, an indexed monthly sum, a monthly sum that decreases over the years, or a monthly sum and periodic lump sum payments. Most dealers do not charge for providing projections of the various income streams and the costs associated with them.
In addition to the claim for damages, the successful claimant should claim costs. Courts award costs to compensate for the costs of pursuing a claim. Costs are calculated or assessed on the basis of a tariff set out in the Supreme Court Act, RSBC 1996, c 443. They do not fully compensate the claimant for the cost of pursuing the litigation but go some distance toward paying for the disbursements and a portion of the legal fees charged by the lawyer. Claimants in Small Claims court can claim “expenses” but not counsel fees.
J. Reaching a Settlement Before Trial
Following examination for discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer, or continue to prepare the claimant’s case for mediation or trial. This process will likely be repeated several times.
The Notice to Mediate is a new process by which any party to a motor vehicle action in Supreme Court may compel all other parties to the action to mediate the matters in dispute (Notice to Mediate Regulation, BC Reg 127/98, s 2 [NMR]). The Notice to Mediate process does not provide a blanket mechanism to compel parties into mediation. Rather, this process provides institutional support for mediation in the context of motor vehicle actions.
The party that wishes to initiate mediation delivers a Notice to Mediate to all other parties in the action no earlier than 60 days after the pleading period, and no later than 77 days before the date set for the start of the trial. Within 10 days after the Notice has been delivered to all parties, the parties must jointly agree upon and appoint a mediator (NMR, s 6). The mediation must occur within 60 days of the mediator’s appointment, unless all parties agree in writing to a later date (NMR, s 5). If one party fails to comply with a provision of the NMR, any of the other parties may file a Declaration of Default with the court (NMR, s 11). If this occurs, the court has a wide range of powers, such as staying the action until the defaulting party attends mediation, or making such orders as to costs that the court considers appropriate.
The parties will share the cost of the mediator equally, unless the parties agree on some other cost sharing arrangement (NMR, s 9(2)(b)). The hourly rates of mediators vary, and this is a factor to be considered in selecting a mediator. The mediator will probably spend about one hour preparing for the mediation, and the mediation session will last about three hours.
3. ICBC’s Obligations to the Insured
ICBC has an obligation to protect the insured by making an effort to settle the claim in the limits of the amounts of coverage. Insurers are under an obligation to consider the interests of their insured in deciding whether to settle a claim. The insurer assumes by contract the power of deciding whether to settle and it must exercise that power in good faith.
In Fredrikson v Insurance Corporation British Columbia, 1990 CanLII 3814 (BCSC), Esson CJ. summarizes the law respecting the insurer’s duty to its insureds in certain areas discussed therein. In this particular case, ICBC acted in good faith, and in a fair and open manner, followed the course the insured wished to take. Among the points raised in the judgment are:
- i) the exclusive discretionary power of ICBC to settle liability claims places the insured at the mercy of the insurer
- ii) this vulnerability imposes duties on the insurer to act in good faith and deal fairly, and to not act contrary to the interests of the insured, or, at least, to fully advise the insured of its intention to do so;
- iii) the insurer’s duty to defend includes the obligation to defend by all lawful means the amount of any judgment awarded against the insured.
See also Shea v Manitoba Public Insurance Corporation 1991 CanLII 616 (BCSC), per Finch J.
4. Formal Offers to Settle and Cost Consequences
Under Rule 9-1 of the Supreme Court Rules, a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation.
NOTE: An offer to settle does not expire due to a counter offer being made.
For Rule 9-1 to be engaged, a formal offer to settle must be made in writing, and delivered to all parties of record, and must contain the language:
- "The ............[party(ies)]............, ............[name(s) of the party(ies)]............, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."
Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission.
If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial Court (Small Claims Act), they are not entitled to costs, other than disbursements. However, this rule can be overridden if the court finds a sufficient reason for the proceeding taking place in the Supreme Court.
The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider:
- whether the offer ought to have reasonably been accepted;
- relationship between the terms of settlement and the final judgment of the court;
- relative financial circumstances of the parties; and/or
- any other factor the court considers appropriate.
Based on such considerations, the court may do one or more of the following:
- if it determines that the offer ought reasonably to have been accepted, then the court may deprive a party of costs, to which it would otherwise be entitled, for steps taken after the date of service or delivery of the offer to settle;
- award double costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer;
- award a party costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer which that party would be entitled to had the offer not been made;
- Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer.
The rules penalizing a plaintiff for overreaching the true value of a claim can be catastrophic, and can visit financial ruin upon a claimant who does not exercise a sober and realistic assessment of their claim as they proceed into Supreme Court. It is entirely within the realm of possibility that a claimant who refuses to accept an offer of $30,000.00, after judgment for $29,000.00 (i.e. lower than the offer to settle) would finish the day, after paying the insurer’s costs and disbursements, and their own disbursements, with nothing or less than nothing: a debt to the insurer and their own lawyer for disbursements.
It should be stressed to clients that the lawyer who is hired to do a personal injury case is supposed to be objective, realistic, and not inclined to simply tell the client what they want to hear. When a lawyer talks about the risks of litigation, this penalty for misjudging the value of a case is one of the most important risks to consider.
© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.